Full Judgment Text
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Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. of 2023
(@Special Leave Petition (C) No. 4689 of 2023)
Ali Hussain Ishaq Ali Vohra & Ors. ... Appellant(s)
Versus
State of Gujarat & Ors. ... Respondent(s)
J U D G M E N T
Sanjay Kumar, J
1. Leave granted.
2. The appellants were non-suited by the Gujarat
Signature Not Verified
High Court in Special Civil Application No. 15098 of
Digitally signed by
GEETA AHUJA
Date: 2023.04.27
16:29:54 IST
Reason:
2022 on the ground that they had not taken the leave
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of the Court to file a case afresh while withdrawing
their earlier writ petition, viz., Special Civil
Application No. 4865 of 2020. Aggrieved thereby, they
are before this Court.
3. Heard Mr. Rauf Rahim, learned counsel for the
appellants; and Ms. Deepanwita Priyanka, learned
counsel, appearing for the respondents.
4. The record reflects that the appellants
earlier filed Special Civil Application No. 4865 of
2020 seeking a declaration that the Gujarat
Prohibition of Transfer of Immovable Property and
Provision for Protection of Tenants from Eviction from
Premises in Disturbed Areas Act, 1991, and the Rules
framed thereunder, were unconstitutional. They also
sought quashing of the Notification dated 30.09.2014
issued by the Government of Gujarat under the
aforestated enactment and the decision dated
06.09.2019 of the Collector, Vadodara District,
refusing them permission for transfer of the property
in question. Lastly, they sought a direction to the
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Sub-Registrar, Bapod, to release the sale deed dated
17.03.2015 executed in their favour. However, they
filed I.A. No. 2 of 2021 in Special Civil Application
No. 4865 of 2020 stating that they had filed the writ
petition as they proposed to purchase land from
Shobhanaben Chandrakant Jadhav and others and as the
sellers were Hindus and they were Muslims, their
transaction required permission in terms of the
impugned enactment. However, they decided to transfer
their rights in favour of one Jigneshbhai Dhuman who
was a Hindu and, therefore, the provisions of the
impugned enactment would no longer apply to the
transaction, after assignment of their rights in
favour of Jigneshbhai Dhuman. They, therefore, prayed
as under:
‘……… on account of this development, the
provisions of the impugned statute herein do
not apply to the petitioners and therefore, the
petitioners seek to withdraw the petition with
a liberty to approach this Hon’ble Court again
if need so arises.’
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5. However, a Division Bench of the Gujarat High
Court passed order dated 17.06.2021, dismissing
Special Civil Application No. 4865 of 2020 as
withdrawn without referring to the prayer made for
grant of liberty to approach the High Court again if
the need arose. According to the appellants, the
arrangement with Jigneshbhai Dhuman did not work out
and that is the reason why they again had to approach
the Gujarat High Court by way of Special Civil
Application No. 15098 of 2022, reiterating prayers
identical to those made in Special Civil Application
No. 4865 of 2020.
6. Perusal of the impugned order dated 19.09.2022
passed by the Gujarat High Court reflects that the
Division Bench noted the fact that the prayers in both
the writ petitions were identical and, having perused
the order dated 17.06.2021 passed in the earlier case
dismissing it as withdrawn with nothing further, the
Division Bench opined that the same was a withdrawal
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simpliciter and not a withdrawal with leave to file a
fresh petition either on the same cause of action or
on a different cause of action.
7 . It appears that the Division Bench failed to
take note of the prayer made by the appellants in I.A.
No. 2 of 2021, wherein they specifically sought
liberty to file a case afresh if the need arose. The
mere absence of the mention of such liberty in the
dismissal order dated 17.06.2021 cannot be taken to be
a refusal of such prayer by the High Court upon
application of mind. There is no indication to that
effect in the order itself.
8 . We are, therefore, of the opinion that the
High Court ought not to have held against the
appellants on technicalities when the withdrawal
application filed by them indicated their clear
intention to file a case afresh if the need arose.
The appeal is accordingly allowed, setting aside the
order dated 19.09.2022 passed by the Gujarat High
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Court in Special Civil Application No. 15098 of 2022.
The said case shall stand restored to the file and
shall be adjudicated on its own merits and according
to law, subject to just exceptions.
In the circumstances, no orders as to costs.
…………………………………….,J
(Krishna Murari)
……………………………………,J
(Sanjay Kumar)
th
24 April, 2023
New Delhi.
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ITEM NO.49 COURT NO.13 SECTION III
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 4689/2023
(Arising out of impugned final judgment and order dated 19-09-2022
in SCA No. 15098/2022 passed by the High Court Of Gujarat At
Ahmedabad)
ALI HUSSAIN ISHAQ ALI VOHRA & ORS. Petitioner(s)
VERSUS
STATE OF GUJARAT & ORS. Respondent(s)
(IA No. 36786/2023 - EXEMPTION FROM FILING O.T.)
Date : 24-04-2023 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE KRISHNA MURARI
HON'BLE MR. JUSTICE SANJAY KUMAR
For Petitioner(s) Mr. Rauf Rahim, AOR
Mr. A.A. Zabuawala, Adv.
Mr. Ali Asghar Rahim, Adv.
For Respondent(s) Ms. Deepanwita Priyanka, AOR
UPON hearing the counsel the court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the
signed non-reportable Judgment. Pending
application(s), if any, shall stand disposed of.
(Geeta Ahuja) (Beena Jolly)
Assistant Registrar-cum-PS Court Master
(Signed Non-Reportable Judgment is placed on the file)